High Court Blunders & Blinders

I don’t remember a Fourth of July like it. Yes, we had our family gatherings, enjoyed our barbecued burgers and fried chicken, partook of fiery holiday pyrotechnics, and listened to the patriotic tunes of old. But, underneath it all, didn’t it seem different? It did to me. It seemed different because it was different. 

For many Americans, the weeks leading up to July Fourth didn’t quite set the mood for the celebration the occasion usually inspires. Mass indiscriminate shootings killed hundreds of our fellow citizens and crippled their loved ones for life; Covid’s downward trend reversed itself and appears to be on the rise again in many places, with 350-400 of us dying every day (multiply that out and it’s over 130,000 annually, on top of the million-plus already gone); the never-warranted optimism about chasing Russia out of Ukraine, mis-reported so confidently for so long by the media, turns out to have been Alice in Wonderland fantasy; the Senate was off on yet another recess, paralyzed by a lock-step opposition party and a couple of majority members who, in their breathtaking hubris, would bring progress to a halt if they aren’t given everything they demand; and some really bizarre Supreme Court decisions that rank right up there with the worst high court output ever.  (More of that below.) The Good Ship Democracy has set upon rough seas and there is no safe harbor in sight. Put another way, our country is not going where it needs to go. 

Many savants of old didn’t believe that democracy was a viable form of government in the first place. Some considered it the absolute worst because they thought it would quickly evolve into mob rule and then tyranny. Kingship was often considered the ideal. Our country’s founders set out to prove that a representative government, where people set the direction of the polity while retaining their fundamental rights, could work. Maybe it wouldn’t last forever, but hopefully for a long period of time. (Some of them thought the Constitution they wrote would be a success if it just got the country through the next generation or two.)  I think almost none of them thought what they were writing would last for eternity or that it could not be changed as the nation changed. Some of them may of course have had differing motivations in Philadelphia, and there were tragically-made concessions on critical issues, especially slavery, that continue to impact our quest for a more inclusive democracy today, despite the progress we have made.  Overall, it was a learned group, versed in theories of government, common law, Enlightenment thinking, natural rights, and the need to build something new.  As assemblages go, this one was by-and-large impressive.

Where we get hung up now, and where the courts are leading us rapidly astray, is how to interpret the Constitution the founders wrote. Decisions today are too often written with no sense of the document’s context or its wholeness. Justices on ideological missions shout “enumerated rights, enumerated rights” as if the founders were trying to name every right an individual possesses, with the goal of making sure no other rights are included. That’s ridiculous. For years before the Constitution was written, centuries even, fundamental rights were based on common law and widely-shared consensus. No one saw a need to enumerate in our Constitution every such right.  I don’t believe the founders thought they, or anyone else, could create an exhaustive list of individual rights.

Maybe our high court justices, and all judges really, should acquaint themselves with the Ninth Amendment to the Constitution. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While we hear a lot about stare decisis and the importance of precedent in the current abortion debate, for just one example, English common law had long been predicated upon an assumption that abortion was legal up until the time of “quickening”.  I don’t believe anyone thought that right had to be enumerated in the new Constitution. Ditto the right to marry, the right to travel, to select one’s livelihood, and to enjoy personal privacy. 

Supreme Court reliance on the Ninth Amendment has been infrequent, to say the least. Justices seem more interested in fighting cases out on other grounds.  Perhaps more attention to the Ninth Amendment and less on some of the arcane theories of recent decision-writers would help us implement the Constitution more effectively. And maybe, just maybe, this would be a better kind of “originalism” than that posited by some justices whose decisions are sometimes more informed by ideological ramblings than by real history.   

By the way, the Tenth Amendment is also relevant to the discussion of the people’s rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Perhaps some heightened focus on “to the people” part would be truer to the intent of the founders.

One final reference as another debate rages over whether state legislatures ultimately exercise control over the “times, places and manner” of holding elections:  Article 1, Section 4, concludes that “…the Congress may at any time by Law make or alter such Regulations….” This included federal and state elections.   

I know—I’m not a lawyer—and I expect some “in the weeds” legal savants will rush to contest what I have written here. But I think it’s time to look anew at individual rights and to broaden our discussion of them to include where we have sometimes gone wrong in safeguarding those rights. This demands more than just questioning court nominees about stare decisis, important as that may be. This is a discussion for we, the people to be involved in.

As we ponder the inroads the current high court is making into areas where it really has little writ to intervene, let’s wake up to the fact that its actions are tossing real Constitutionalism out the door, on both policy and process. We must react against this. Now. It will be a messy battle. FDR found this out when he proposed his “court-packing” plan in 1937. Often deemed a political mistake by historians, he was reacting against the decisions of a hidebound Supreme Court that was hell-bent on undoing his New Deal legislation. His specific proposal went nowhere, although it did have the salutary effect of scaring hell out of the court, which soon decided to begin approving some of those New Deal laws. A court needs to fit its time; the current high court does not.

While we still have much to celebrate in this land, there is so much left to do. That’s not just opinion.  Global rankings tell the story. The respected Economist, which rates the state of democracy in many nations, puts the United States at number 26, and goes on to label us a “flawed democracy.” The Commonwealth Fund says we are number 11 out of 11 nations it ranked in healthcare.  Rule of law: we’re 27 of 139 says the World Justice Project. I could cite dozens more instances pertaining to life expectancy, infant mortality, childcare, broadband penetration, and on and on and on. 

I say this not to disparage. There is no place on earth I’d rather live.  But we have to remove our blinders, ideological and otherwise. We must learn the facts from a more responsible media, insist upon a judiciary that preserves human rights, demand results from Congress, and realize that each of us is responsible for doing our part.  Preserving our democracy is not a spectator sport. Being a part of preserving and enhancing it is everyone’s solemn obligation.

Michael Copps served as a commissioner on the Federal Communications Commission from May 2001 to December 2011 and was the FCC's Acting Chairman from January to June 2009. His years at the Commission have been highlighted by his strong defense of "the public interest"; outreach to what he calls "non-traditional stakeholders" in the decisions of the FCC, particularly minorities, Native Americans and the various disabilities communities; and actions to stem the tide of what he regards as excessive consolidation in the nation's media and telecommunications industries. In 2012, former Commissioner Copps joined Common Cause to lead its Media and Democracy Reform Initiative. Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest. Learn more about Commissioner Copps in The Media Democracy Agenda: The Strategy and Legacy of FCC Commissioner Michael J. Copps

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